A few days ago I posted a video of an NYU civil procedure class performing a skit that somehow is supposed to explain the Erie doctrine. You can see NYU’s own coverage of the event here. Now it’s time to look at just how much damage was done.

A semester in law school, not counting exam periods, lasts about 14 weeks. And, in each of those weeks, an NYU 1L will have 15 hours of class room instruction (see, we didn’t count exam periods because there are no classes then). Actually, at NYU you’ll have 15.5 hours the first semester, and 14.5 the second semester, if you have civil procedure first semester (which these kids obviously did), but it’s a 5 hour class, and replaced with a 4 hour class second semester. The weird .5 comes from Lawyering being 2.5 credits per semester, taken both first and second semesters. I’m just going with the average of 15 hours to keep things tidy.

So, 14 weeks multiplied by 15 hours per week means 210 total hours of classroom instruction for the semester. Yearly tuition at NYU is $44,820, or $22,410 per semester. This is just tuition, not total expenses with books, and fees, and room and board. So, $22,410 for 210 hours of classroom instruction comes out to $106.71 per hour.

Now, unless something big has changed since I attended, the 1Ls are divided in to 4 sections, and each section has two different civil procedure groups. When I was there I believe we had about 450 1Ls, and I believe that number has gone up, but let’s just call it a conservative 50 students per civ pro class. 50 students x $17.79 per student is $889.50.

$889.50 for that sketch. To me, that doesn’t actually sound like a whole lot of money when you compare it to the total cost of law school. But, I think going back to the per-student figure is more enlightening.

$17.79 per student in the audience, $17.79 per student performing (yes, they pay to perform in class, not the other way around), and $17.79 per student who’d really rather just get a decent education and be prepared to enter the workforce upon graduation. $17.79 per student to watch a performance which, given most classes’s attendance policies, students were more or less required to see.

Would you have paid $17.79 to watch that performance?

Would you have financed that $17.79 with non-dischargeable debt which you will be paying off for the next 10, 15, or 20 years? When you include the interest, that $17.79 could easily blow up to $30 or $40 dollars per student.

But even in today’s dollars, let’s look at how much $17.79 is. Just a block from where this performance took place (assuming it was in Vanderbilt Hall, which it looks like it is) is the Comedy Cellar. Ticket prices Monday-Wednesday are $10, Thursday and Sunday are $12, and Friday and Saturday are $18. The shows usually last about 2 hours, and involve 6-8 comedians performing short acts.

If you went to tonight (it’s Wednesday, so only $10) your opening act would be Modi:

Then, you would listen to 5 other comics who have been on Last Comic Standing, Z Rock, Howard Stern, and written for Dave Chappelle. After that, you’d get your headliner, Dave Attell:

And then, to close, you’d have schmuck who only got so far as having a half hour special on Comedy Central.

Of course, Comedy Cellar, like most comedy clubs, has a 2 drink minimum. Domestic beer is $5, imports are $6. I’ll assume they have something like Sam Adams or another good American beer, so we’re going domestic. $20 plus tip. Would you rather pay $22 (tipping only on the drinks, not the ticket, duh) to see these comics, or $17.79 to have your legal education interrupted with an amateur Erie doctrine skit?

Imagine you’re at a restaurant, let’s call it Standard Ristorante, you order the chicken alfredo, and when you taste it, the flavor seems a bit off, it’s somewhat sour (maybe the cream had started to turn). You flag down the waiter, inform him of the problem, and 19 times out of 20, they’ll just take your word for it and either remake your meal, or offer a substitute (maybe you’d like the fra diavolo instead).

Now, imagine instead of Standard Ristorante, you go to a place let’s call Jaydee’s Ristorante, and again you order the chicken alfredo. Again, the the cream has turned, but this time due to the other seasonings, your lack of culinary expertise, and the fact that you’re distracted by your date (it’s my hypothetical, so we’re out with Mythbuster Kari Byron) you don’t realize that the dish was bad. You get lucky, go home with Kari, and yadda yadda yadda, you wake up around 3:00am violently crapping your pants.

You clean yourself up, pray you don’t run into anyone in the elevator while taking your mattress pad down to the laundry room, and as soon as 8:00am rolls around, you call your doctor and beg her to see you. If it sounds like I’m a little too familiar with how this goes, yeah…well, that’s beside the point.

After seeing your doctor, you learn that you almost certainly ingested some bad dairy in the last 24 hours. Well, pretty easy to narrow down the likely culprit. So, you call up Jaydee’s Ristorante and complain about getting sick from your chicken alfredo, but instead of trying to make it right by refunding the cost of your meal, picking up the co-pay on your doctor visit, or any other decent response, the chef at the restaurant insists that maybe the sauce needs a little tweaking, but it’s generally fine and certainly isn’t going to make anyone evacuate their bowels in their sleep.

How pissed off would you be? How much would you trust the chef’s opinion on the quality of the food while you’re putting your (thankfully) salvaged mattress pad back on the bed?

Obviously (unless you’re new to this blog) this is a metaphor about law schools.

What should be the appropriate response from the legal academy when hordes of law students graduate and find that their degree is virtually unmarketable? And, not just students who went to forth tier diploma mills, but students who went to T1 and T2 schools and got decent grades, like this girl, who works for $7.50/hr at a coffee shop to pay the bills:

As I mentioned yesterday, I e-mailed several of the professors involved in the Theory v. Practice debate over on the Prawf’s Blawg, saying that the professors need to pay more (or any) attention to what their recent graduates actually thought of their legal education. Two of the professors responded by e-mail.

First, Richard Garnett (Notre Dame),

Dear [BL1Y],

Thanks for writing. I am sure that all of us with whom you shared these thoughts do, in fact, talk often and in depth with our former students, and with other young lawyers, about their experiences, both in law school and in the profession. And, I am pretty sure that we all know about and appreciate the realities that clinical slots are hard to get into, etc.

You say, at one point, that “[t]oo many professors pass the buck when it comes to skills training, saying that the best place to learn black letter law and develop skills is on the job, and the class room is simply better suited to teaching theory.” If that’s been your experience, then I think that’s too bad. But I don’t know many, let alone “too many”, who think that learning “black letter law” ought not to be among the aims of a law-school classroom.

Best wishes,

Rick

And then a response from Kristen Holmquist (Drake),

Dear [BL1Y],

Thanks for your thoughts. Like Professor Garnett, I’ll just note that I am in constant contact with recent grads. And that some of my work actually relies on a pretty immense study of what not only recent, but long-practicing and expert lawyers think about lawyering entails. And it’s difficult to disagree with your points here – of course we should have more practice-oriented writing opportunities for students, for example.

Saw your blog. Interesting take.

Take care,

Kristen

After receiving these responses, I decided to take a quick survey of the other young lawyers I keep in touch with, asking whether anyone at their school had contacted them to get their take on their legal education. This will come as no surprise to my readers, none of them had heard a peep from old professors. But, I will admit I only asked a small number of people, so I figured I throw a poll on here and hear back from you guys.

Paul Horwitz (Alabama, RMFT) also responded via blog comment, and I won’t repost the whole thing here as it is (and he admits) non-substantive. But, I do want to include this bit:

[...] I am certainly not opposed to making sure that skill-oriented courses and clinics meet enrollment demands; I don’t think that reform requires a radical overhaul of the system,

Remember that chef that told you the sauce that made you violently ill is mostly okay, and maybe just needs a minor adjustment? Remember how pissed off that would have made you?

I don’t know about you, but when I spend over $100,000 on law school only to wake up in the middle of the night and find I’d just crapped out my future, I’m willing to put “radical overhaul” on the table.

Moving on, there was a comment in response to one of Horwitz’s posts on the Prawfs Blawg that’s interesting. This one comes from Orin Kerr (George Washington U.):

I would add that to the extent we think legal education needs to change either to become more practical, or more international, or more theoretical, or more whatever-ical, there is a very straightfoward way to do that: Through electives. In most law schools, only the first year is required. Students then face a choice about how they want to take for their 2L and 3L years, and generally speaking, they can specialize however they want. They can take clinicals; theory classes; classes on trial practice; classes on legal history; classes on doctrine; etc. If students start to take certain kinds of elective courses instead of others, because they realize that they need certain skills or perspectives for whatever reason, legal education will change to accommodate them.

Yes, Kerr is correct that law schools do need to offer a wide variety of electives so that students can tailor their education to their career plans. Where he goes wrong is his conclusion that the present assortment of electives generally means you can pick the classes you want.

Of course, those of us who have been law students recently know there’s more to it than that. Schools don’t have elaborate lottery systems because it’s so easy to specialize however you want. Students aren’t able to sell seats in over-enrolled classes for hundreds of dollars because everyone’s satisfied with their schedule.

It’s generally pretty hard to get many classes you want second year, because third year students at most schools get priority. So, you only have one year to cram in all the really good stuff. If the classes you were dying to take are only offered every other year, you’re out of luck. If there’s a scheduling conflict, you’re also out of luck. If there’s a prerequisite you had better hope you did some careful planning your 2L year and didn’t change your mind about anything. And of course, there’s the mother of all things stopping you from getting the classes you want: they aren’t ever offered.

Want to take a class on drafting contracts, or drafting wills? You can’t at NYU. Ever. Sorry.

So, as an experiment, I’ve decided to look for 3 different classes at NYU and each of the 5 schools represented by the professors I have mentioned recently. The classes are contracts drafting, wills drafting, and private equity deals. And, the class must be offered in the next year, either Fall 2010 or Spring 2011. I’ll try to give a fair look at each school’s curriculum, but I admit I might miss something, so please let me know if I made a mistake.

*The description of Decedents Estates, Trusts, and Fiduciary Obligation states that class covers drafting techniques, but this is not reflected in the syllabus and there is no graded drafting exercise. Estate Planning also says students will gain some experience in drafting, but since Decedents Eststes’s syllabus contracted the course description, we can’t be too sure Estate Planning’s description is accurate on this point. (No syllabus was available for Estate Planning.)

*Contracts are only a small part of the class, which focuses instead of corporate formation, charters, and bylaws. This is actually a class I would have been very interested in, but it’s not what we were looking for in this experiment.

Instead You Can Take: Law of Race and Slavery (If the Slaughter-House Cases ever get challenged, you’ll be the go-to expert!)

*Legal drafting covers drafting of pleadings, motions, contracts, deeds, wills, and other documents. All this is crammed into a 2 credit class.

In Conclusion…

A few question:

Are law schools really acknowledging the opinions of the people who are in the best position to know if law school prepared them to be lawyers (aka: recent grads)?

For the six figure tuition students are paying, and the six figure salaries (full) professors earn, should the schools be more willing to remake a dish that went bad, or offer a substitute or a refund?

Should professors recognize that even though they are not subject to the whim of their students, they are ultimately in a service industry, and should be less concerned with the prestige of journals that publishquality of their scholarship, and more concerned with their fraudulent employment dataactual student outcomes?

And, does anyone actually believe that Professors Garnett and Holmquist are really in regular contact with the average graduates of their law schools, and not just stockholm syndrome fanboysa self-selecting group of people with good enough experience that they want to stay in touch?

I would say “you be the judge,” but really, who’s going to elect or appoint you with that gaping hole in your employment history?

In a nutshell, plaintiffs argue that the alleged disparate impact of punch-card ballots on minority voters violated Section 2 of the Act, 42 U.S.C. § 1973. Plaintiffs allege that minority voters disproportionately reside in punch-card counties and that, even within those counties, punch-card machines discard minority votes at a higher rate. To establish a Section 2 violation, plaintiffs need only demonstrate “a causal connection between the challenged voting practice and [a] prohibited discriminatory result.” Smith v. Salt River Project Agric. Improvement & Power Dist., 109 F.3d 586, 595 (9th Cir.1997) (internal quotation marks omitted). There is significant dispute in the record, however, as to the degree and significance of the disparity. Thus, although plaintiffs have shown a possibility of success on the merits, we cannot say that at this stage they have shown a strong likelihood.

Here we basically have a discussion where success on the merits would have been pretty easy. Plaintiff only needed to show a casual connection between voting practice and a discriminatory result, which they seemed to have evidence of. However, “significant dispute” in the record was enough to take the plaintiffs down to a mere possibility of success, not a strong likelihood.

This should be a sort of no-brainer for the State. Just make a good faith showing that you have some reasonably chance of winning on the merits and this precedent will take you far. As for the Tribe, I don’t know. Just be prepared for another hurdle.

Hopefully all the 1Ls at NYU have found Winter v. Natural Resources Defense Counsel already, but if you haven’t, go read it. Winter makes a pretty important adjustment to the requirements for a preliminary injunction.

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,and that an injunction is in the public interest.

The moving party is no longer requires to show that they will suffer irreparable harm, but only that they are likely to. This is obvious a lot of help to the Tribe, for which the harms they are arguing are largely hypothetical.

If you are arguing for the tribe, make sure you point out that this case changes the standards. It is not enough to simply put the new standard in your brief. There is a good chance your judge will gloss over it and not really notice that there has been a change. Remember, your judge may be just an attorney, and that attorney may not have argued a preliminary injunction case since Winter came out two years ago. Make sure it is clear not just what the new standard is, but that the standard has recently changed.

For the State, there’s not really a lot you can get from this. Just continue to focus on making the burden of proof an uphill battle for the Tribe. Argue that the harm won’t be irreparable, and make sure the Tribe is showing that the harm isn’t just a possibility, but is in fact likely.

Since posting my offer to help NYU students with their ICWA assignments just 6 days ago, I’ve already had 4 students e-mail me asking for help. Over 20 people have come across my site while specifically looking for help with the assignment. (I can tell they didn’t stumble upon while doing regular research, because the searches contain terms like “NYU” and “memo.”)

I imagine in the next few weeks, I’ll be getting some more requests for help, so I’m going to go ahead and post some of the general advice here. When you kids are further along in your writing, feel free to send me a draft of your brief and I’ll look over it and get back to you. And, you can always just e-mail me questions if you have an issue that I didn’t address here.

If you’re wondering about my qualifications to give you advice, you’re on the wrong train of thought. You can get my advice and then exercise your own judgment. If you mindlessly follow whatever I say, you’re a moron. But, having said that, I wrote a substantial section of one of the “model answers” for one of the larger lawyering projects (I won’t say which one, because that could jeopardize my anonymity). And on top of that, I’ve been through the damn ICWA exercise, and won…as the mother-freaking Tribe. Also, I’m collecting old briefs from some of my classmates, and stitching together a master brief, so you’re getting more than just my experience.

How to Structure The Damn Thing

Factual Background

First, give a really short introduction so the reader has some context. Then, give a bit of the history leading up to ICWA. Finally, give the specific facts for this case; explain who is moving for what and why.

Legal Standard

State the four parts of a preliminary injunction.

Analysis

One by one, explain how the facts relate to each of the preliminary injunction requirements. Even though this is a hearing before a judge, the question is largely a factual one, so think more in terms of the factual argument you would present to a jury.

Whenever possible, add in relevant precedent. There are basically two types. The first gives legal standards. If a court has defined what “irreparable harm” means, state it.

The second type of precedent is factual. Look for cases where the party on the opposite side from your should have won, but lost. Then argue that if the party lost in that case, your opponent must lose in this one.

For example, if you’re the state and there is a case where a party moving for a preliminary injunction said that if the injunction isn’t granted a bomb will blow them up, and the court didn’t think that was irreparable, then there’s no way the harm the tribe is claiming is irreparable.

Conclusion

This is probably the least important part of the memo, it just makes things fit together. If you’re the tribe, argue that you met all four requirements. If you’re the state argue that the tribe failed all four requirements, and that they only need to fail one.

State Strategy

The state has two basic themes it wants to run with: burden of proof, and best interests of the child.

The tribe is the moving party, the burden of proof is on them, and if they fail on just one of the preliminary injunction requirements, the whole thing fails. Play to those strict rules as much as possible.

Also, harp upon how the state is protecting the best interests of the child, while the tribe is fighting for the best interests of the tribe. The better this argument is, the more likely the judge is to find the tribe failed to meet its burden of proof.

Tribe Strategy

The tribe’s strategy revolves around best interests of the child, and the status quo.

The tribe has to rely on the poor track record the state has in how it treats Indian children. Use this to undercut the state’s claim that it is acting in the best interests of the child. Paint them as bumbling government bureaucrats, wrecking lives just to follow a misguided law.

Then, argue the status quo. Even though you are moving for a preliminary injunction, what you’re really arguing is that everything stay where it is until trial. The state is the party trying to get its way before the hearing. This argument is completely bogus legally, it does not at all change the legal burdens on the tribe. But, it should soften the judge and make him more likely to find you’ve met your burden.

Law school parties are a recipe for disaster. You’ve got a bunch of neurotic, undersexed, stressed-out socially awkward nerds with big egos and low alcohol tolerance. How could it not go wrong?

To: All Law Students

From: XXXXXXXXX

Re: Spring Fling, March 8, 2007 – A Message of Concern

Date: February 27, 2007

The annual Spring Fling will take place in the Vanderbilt Hall on Thursday, March 8th between 8 PM and 12AM. Invitations will be placed in student mailboxes later this week. We wanted to let you know about some changes we have instituted at this year’s Spring Fling as a result of incidents that occurred at the 2006 Spring Fling and 2006 Fall Ball.

We found that the level of intoxication among some students at these events was quite high. As a result:

1. Several students become ill in Vanderbilt Hall and in the Residence Halls

2. Two students had to be hospitalized

3. One wait-staff was assaulted by an intoxicated student

4. There was extensive property damage to Greenberg Lounge

In addition, although we have always encouraged students to bring their spouse or domestic partner to these events, we found that many students were bringing other guests and that some of these guests were under 21. We had no mechanism for identifying these underage guests.

We are sure you will agree that these issues are troubling and need to be addressed. Therefore, at this year’s Spring Fling law students must show their law school ID and a second form of ID showing their age. Any spouse or domestic partner who accompanies a law student must also have a picture ID that shows their age. Anyone without these IDs will not be admitted.

All attendees 21 years of age and over will be given a wristband with 2 drink tickets attached. Attendees under 21 will receive a wristband with no drink tickets. In addition, we will have sandwiches and other foods available in addition to the usual snacks, beer, wine, and soft drinks. As in previous years, we will stop serving alcoholic beverages one hour before the end of the event.

We hope that these measures will help to address some of the problems associated with this event. However, it is up to all attendees to make the Spring Fling the community building and celebratory event that it is intended to be. Please look out for your fellow students and help us to make the event safe and enjoyable for everyone. Enjoy the Fling!

While I can’t defend people who trash the place and assault the staff, much of the blame for shitty law school parties falls on the school. Our parties at NYU had the classic disaster combination of free booze and no food.

Okay, there actually was food, but there might as well not have been. The two big items on the menu at the party that wrecked parties for all future NYU law students were chips and sandwiches. Chips are a big no-no. They’re salty and just make people want to drink more.

Sandwiches are worse. These weren’t hearty, Carnegie Deli sandwiches. These were wimpy, more-bread-than-meat sandwiches. I guess they law school subscribes to the belief that bread will keep you from getting drunk because it “absorbs” the alcohol. First of all, that’s not even true. Second, it wouldn’t matter, because you’re still digesting the alcohol-saturated bread.

As every fraternity since the dawn of time as learned, if you want to keep people from getting too fracked up (for frats the question is purely academic), you serve pizza. Meat, cheese, grease. That’s the way to go.

After and incredibly disappointing and uneventful 2L Spring Fling, the new SBA leadership tried to get our up our drink allowance. We got a recap of the negotiations in one of our weekly SBA e-mails.

Next week the Law School will be hosting its annual Fall Ball. Fall Ball is an official Law School event, hosted and funded by the Office of Student Affairs, and not the SBA. In response to property damage and other issues during last year’s Fall Ball, the Dean’s office decided to limit the student body to two drinks per person. Beginning last Spring, the SBA embarked on a series of discussions with the administration to advocate for more drink tickets at the official Law School semesterly parties (Fall Ball and Spring Fling). As a result of these discussions, the Dean’s Office made an offer to the SBA that they would increase the number of drink tickets to three tickets per student if the SBA would agree to indemnify a proportion of any property damage out of its budget. The SBA Board did not deem it appropriate to put student activities funds and other student monies at risk, and have the entire student budget contingent on the potential actions of individuals. The SBA refused the offer, and Fall Ball will be limited to two drink tickets per student, as Spring Fling was last year.

What a fracking ridiculous joke of an offer from the administration. All of the SBA’s funds come from the school. The administration knows the SBA couldn’t possibly pay for any damages because the administration hasn’t given the SBA that kind of money.

Personally though, I think our SBA should have accepted the offer. What’s the worst that could happen? We damage the school in a three-drink rampage, the school asks the SBA to hand over the cash, and the SBA informs the school of how incredibly unpopular it would be to rob every student organization of their funding. Odds are the school would just give a big “harumph,” pay for the damages itself, and limit students to two drinks at the next party.

Even if they did pull funding for all future parties, how hard is it to round up a few 3Ls with money left over from summer jobs to spring for a case of Yellow Tail and a couple PBR kegs? Yeah, that’s the shit they served at our parties. A two-drink maximum is a reprieve.

It’s ICWA time again at NYU School of Law. ICWA is the Indian Child Welfare Act, which is the main statute involved in the NYU lawyering program’s largest project of the year, a brief on a pre-trial motion along with an oral argument before a judge or attorney playing a judge.

I was reminded that it’s that time of year again when I looked at the search engine queries that have brought people to this site. A search for “icwa nyu” is almost certainly from someone trying to find a lawyering program alumnus who has posted their old memo or other useful information.

If that’s you and you’d like some help, simply e-mail me at nycbl1y@gmail.com and I’ll be more than happy to give some advice. I promise not to turn you in, and you can create a gmail account with a fake name if you’re worried. It’s been a while since I did the ICWA project, but there are some things I remember learning from my judge that were incredibly important, and which my lawyering professor never mentioned or even appeared aware of.

Think this is cheating? Meh. Lawyering is ungraded, so your doing better does not hurt anyone else. I’m not going to write your memo for you, I’m just going to give you tips that will help you write a better memo. Basically, all you’re doing is learning how to be a more effective advocate, which is exactly what lawyering is supposed to teach you.

[Earlier: Check out this hilarious e-mail exchange between a lawyering teaching assistant and two students about how the class wasn't giving ICWA or lawyering the kind of respect they deserve.]

Seems pretty reasonable, but plenty of raging panties are already bundled up about it. Feministe.com is running an article with the headline “Utah bill would criminalize miscarriage.“ Here’s the complaint from NYU Law grad Jill:

The Utah miscarriage law is understandable because it targets women who intended to have miscarriages.

I understand that. We do hold people more culpable for things that they do on purpose; we also hold people accountable for a lot of things that they do negligently. My question, though, isn’t with the punishment aspect, but with the activism aspect. Let’s say that we take anti-choicers on their word that they really, truly believe that a fertilized egg is a unique, individual human being, and that the death of that egg is like the death of a person. If that’s the truth, then why no activism around trying to find a cure for the close to 50 percent of fertilized eggs that naturally don’t implant, and are flushed out of the woman’s body? Sure, it’s not intentional, but if there were some disease that killed 50 percent of all five-year-olds, I’m pretty sure we’d be doing something about it, no?

I realize this is all pretty far afield from the actual Utah legislation, but it’s illustrative, I think, insofar as it demonstrates that the concern here isn’t really about fetuses or life or any of that. It’s about punishing women.

This isn’t at all about “punishing women.” It’s already a crime for a third party to end the life of your fetus (outside of consensual abortion, of course). All this does it make the law more fair by punishing women who obtain illegal abortions.

I just got a call from the NYU alumni people asking me to donate money to the school.

NYU Chugger: “We’re hoping to get everyone to contribute and are asking for you to make a donation of $250.”

BL1Y: “Sorry, but I can’t. I recently got laid off. Can you send me some money?”

NYU Chugger: “Well, what we really want is just for everyone to contribute, so can you contribute even just $35 to show that you enjoyed your experience at NYU?”

BL1Y: “No. I didn’t enjoy it.”

NYU Chugger: “Can I ask why not?”

BL1Y: “You don’t have the time to hear it all.”

Are they serious? Their records should show that I paid for school with private loans. Even if I was still working, where would I have the money to donate to the school? If I give money anywhere it’s either to the undergrad literary journal I worked on, or to establish a scholarship for the philosophy department. I’m sure as hell not going to give money to NYU.

The Juris Doctors were created by law schools.
They were laid off.
They devolved.
They look and feel human.
Some are programmed to think they are human.
There are many copies.
And they don't have a plan.